Case 1:16-cv-00126-RC Document 251 Filed 01/27/16 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - x
Dennis L. Montgomery,
Plaintiff,
v.

No. 1:16-cv-00126-RC

James Risen, Houghton Mifflin Harcourt

Publishing Co., et al.
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - x

DEFENDANTS REPLY TO PLAINTIFFS

ADDITIONAL MATERIAL DISPUTED FACTS

DAVIS WRIGHT TREMAINE LLP

Laura R. Handman (Bar No. 444386)
Lisa B. Zycherman (Bar No. 495277)
1919 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20006
Telephone: (202) 973-4200
Facsimile: (202) 973-4499
laurahandman@dwt.com
lisazycherman@dwt.com
Counsel for Defendants

Case 1:16-cv-00126-RC Document 251 Filed 01/27/16 Page 2 of 19

62.

Disputed. Risens reporting that Montgomery engaged in a hoax offering

worthless software to U.S. government officials was based on numerous reliable sources
including extensive prior media coverage of Montgomerys fraud in the Wall Street Journal, the
Associated Press, the Reno Gazette-Journal, Bloomberg News, Playboy, Defense News, and the
New York Times, Defs. Statement of Undisputed Material Facts (SUMF) 10-21. And, the
very words Plaintiff contends are Risens own defamatory statements were used in previous,
widespread reports on Montgomerys con, including: the New York Times (MSJ, Risen Decl.
Ex. 3, at 1 (hoax, con man), 5 (ruse); NBC News article by Lisa Myers, Aram Roston and
NBC Investigative Unit (Ex. 4), at 1 (bogus analysis led to terror alert in 2003), 2 (skeptical
implausible); and Defense News (Ex. 13), at 1 (Obamas Counterterror Czar Gave Bogus
Intel to Bush White House), 1 (Disseminated to the Bush White House a stream of CIA
intelligence from a bogus source), 1 (The bogus intelligence nevertheless led), 2 (Bogus
CIA intelligence), 2 (CIA officials viewed the intelligence as crazy and fake), 3
(intelligence officials back at the agency were convinced the information was a fraud); (we
were played; the biggest [unsubstantiated intelligence] that make it all the way to the Oval
Office). Risen relied on FBI reports and court documents in support of his assertion that
Montgomery had engaged in a hoax by rigging demonstrations of his software to U.S.
government officials. SUMF 31-43. Official documents included FBI interviews of Warren
Trepp, Montgomerys partner in eTreppid, who told the FBI that he later learned Montgomery
had no real computer software programming skills, and other eTreppid employees who told the
FBI that they believed Montgomerys software was fake and Montgomery had them rig tests of
his software for government officials, and statements from John Brennans confirmation hearing
for CIA Director including Senator Saxby Chamblisss written questions titled Bogus
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Intelligence based on classified documents reviewed by the Senate Intelligence Committee,

showed that CIA officials derided [Montgomerys] information. SUMF 24-31. Risen also
relied on interviews with numerous high-placed government sources and other sources close to
Montgomery or familiar with his work, including but not limited to William D. Murray, CIA
Paris Station Chief in 2003 when Montgomery was offering the CIA software that purported to
read coded messages on Al Jazeera broadcasts, and Frances Townsend, a former White House
counterterrorism official on the National Security Council who dealt with Montgomerys
intelligence at the White House. SUMF 32-43. See also Declaration of James Risen 7-37,
ECF No. 203 (and exhibits appended thereto). Risen testified that Murray told him that he
believed that the subject technology was a hoax based on a review by a French high tech
firm who looked at the technology, and that Murray was involved in meetings with the CIA
and the White House regarding the findings by the French firm. Risen Dep. Tr. 331:7-332:25.
Murrays statements were confirmed by Tyler Drumheller, the CIA European Division Chief.
See SUMF 34; Risen Decl. 28. Risen relied on Montgomerys former lawyer who said that
Montgomery was a con artist and his software a fraud, as well as Montgomerys invocation of
the Fifth Amendment in answer to the question of whether his software was a complete fraud.
Risen Decl. 22-23.
63.

Undisputed that Risen interviewed Montgomery by phone and email for the

Chapter and included Montgomerys point of view and denials in the Chapter. SUMF 7, 44.
The cited testimony by Mr. Risen does not confirm that Risen believed that Montgomery could
be telling the truth, but only that he wanted Montgomerys side of the story, Risen Dep. Tr.
337:18-24, because, as he also testified, Risen wanted to obtain Montgomerys version of events
which I thought was the real contribution that I was adding to the book pas[t] what many of
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the previous reporters who had written extensively about this whole episode had never gotten,
his voice into their stories. Risen Dep. Tr. 77:13-78:5. As for Montgomerys credibility, Risen
did not believe Montgomerys version of events. Plaintiff made assertions and I kept telling
him please provide the evidence and he never did. And that is what I point out at the end of the
chapter that he made assertions about operations that government officials had asked him to do
but that he had never provided the evidence that he said he had and that he said he wanted to give
to me. Risen Dep. Tr. 80:9-16.
64.

Undisputed that Risen believed that the CIA was mistaken in believing that

Montgomerys software could decode hidden messages in Al Jazeera broadcasts. Disputed that
Defendants knew it was not a fraud or hoax by the Plaintiff, or knowingly transformed
comments that Plaintiffs work may have produced information unhelpful to decision-makers or
inaccurate into false accusations that the Plaintiff committed fraud, a crime against the
government, a con and/or a hoax, because Risen states that, during the course of gathering
information for and writing the New York Times Article and the Chapter and up to the time HMH
published the Book, he did not have any doubts about the truth of the statements he wrote about
Montgomery. Risen Decl. 6. Risens extensive research led to his conclusion that
Montgomerys claims were knowingly false. See SUMF 9, 24-43. The deposition testimony
cited by Plaintiff does not support Plaintiffs assertion that the Chapter makes false accusations
that the Plaintiff committed fraud, but rather concerns Risens belief that government
officials can be disingenuous in public statements regarding matters of national security, Risen
Dep. Tr. 102:7-107:12, and Risens belief that Montgomerys role in misleading government
officials about his software had been publicly disclosed in news reporting, court and
congressional records before the Book was published. Id. at 215:1-217:10. Defendants dispute
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that they knew the Plaintiffs work was to search for whatever data or communications might be
hidden, with no warranty or promise that decision-makers would necessarily find the data
uncovered useful, which Montgomery asserts in his Second Declaration without any
documentary or other evidentiary support, see Second Decl. of Pl. Dennis Montgomery 17,
ECF No. 234-4, and is contradicted by his claim, also unsupported, My software and
technology did work, does work, and is still being used successfully by the U.S. Government
today. First Decl. of Pl. Dennis Montgomery 7f, ECF No. 234-11.
65.

Disputed that Defendants produced email communications between Montgomery

and Eric Lichtblau and James Risen as early as 2011 demanding retraction. The document cited
by Plaintiff is an October 2012 email string between Risen and Montgomery wherein
Montgomery does not point out any factual errors in Risens New York Times February 19, 2011
article, but instead makes suggestions for other sources Risen could speak with. See Pl.s
Statement of Disputed Material Facts (SDMF), Ex. 9, ECF No. 234-9. Plaintiff has not come
forward with a single document evidencing that he made any retraction demand to the New York
Times, nor has he put forward any testimony from any witness at the New York Times to confirm
his claim. Risen maintains that the New York Times Article has not been retracted or been the
subject of any defamation lawsuit, and that Risen did not receive any demand for a correction
and, to his knowledge, no one at the New York Times received a demand for a correction. Risen
Decl. 5.
66.

Disputed. Risen testified that characterizing Montgomerys actions as a hoax

was his phraseology based on having talked to a lot of people at the CIA and elsewhere about
this operation and describing what they said. Risen Dep. Tr. 291:9-292:14; see also id. at
292:19-297:1. For example, Risen testified that William D. Murray, CIA Paris Station Chief in
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2003 when Montgomery was offering the CIA software that purported to read coded messages
on Al Jazeera broadcasts, told him that Murray believed that the subject technology was a hoax
based on a review by a French high tech firm who looked at the technology, and that Murray
was involved in meetings with the CIA and the White House regarding the findings by the
French firm. Risen Dep. Tr. 331:7-332:25. Murrays statements were confirmed by Tyler
Drumheller, the CIA European Division Chief. See SUMF 34; Risen Decl. 28. In addition,
Frances Townsend, a former White House counterterrorism official on the National Security
Council, told Risen that [w]e understood we may have been played by Montgomery and
[t]here was stupid sh[**] reported to the [CIA] for variety of reasons but it[]s fair to say its
the biggest one that makes it all the way through the system. SUMF 37. Risen also relied on
a 2012 article by Aram Roston in Defense News, Obamas Counterterrorism Czar Gave Bogus
Intel to Bush White House, in which the then-head of the CIAs Counterterrorism Center, Jose
A. Rodriguez, Jr., said the Counterterrorism Center was very skeptical of Montgomerys
intelligence and viewed it as crazy. SUMF 20. And, Risen relied on statements from John
Brennans confirmation hearing for CIA Director including Senator Saxby Chamblisss written
questions titled Bogus Intelligence based on classified documents reviewed by the Senate
Intelligence Committee showing that CIA officials derided [Montgomerys] information and
Brennans testimony that Mongtomerys software was determined not to provide accurate
information. SUMF 30. See supra 62.
67.

Disputed. Bruce Nichols testified that the Chapters description of Montgomerys

actions as a hoax was Risens statement characterizing the account he reports over the
course of several pages based on many sources, including some from eTREPPID, the

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company, and including others within the government that the software did not work, and that
yet flights were grounded. Nichols Dep. Tr. 80:14-82:2. See also supra 66.
68.

Disputed. Simon & Schuster did not reject the Book for publication and the email

cited by Plaintiff concerns the scope and focus of the book, and does not reflect any decision
regarding whether Risens manuscript would be published by Simon & Schuster. See SDMF,
Ex. 10, ECF No. 234-10. The documents produced by Simon & Schuster that Plaintiff omitted
reveal that, from initial meetings in January 2013 to discuss the scope of the book through
subsequent drafts in July 2013, Priscilla Painton, the Simon & Schuster editor reviewing Risens
manuscript, viewed the chapter on Montgomery as the Books strongest and raised no editorial
or legal concerns. See S&S-005 (Jan. 23, 2013 memorandum, the Montgomery chapter is

); S&S-011 (July 17, 2013 memorandum,

). The
documents do not support Plaintiffs contention that Simon & Schuster rejected Risens book,
but instead suggest that an impasse was reached regarding whether Risen would agree to write
additional chapters, and delay publication. See S&S-015 (email from Risens agent, Tina
Bennett, to Painton:

). See also Nichols Dep. Tr. 23:6-25:18; 26:23-29:14 (discussing an impasse between
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Risen and Simon & Schuster regarding how to structure the Book and when to publish it).
Plaintiff thus offers no documents or testimony in support of his thesis that Simon and Schuster
rejected the Book and, instead, the documents on their face show that the Book was not rejected
by the publisher and that the publisher had no significant editorial or legal concerns regarding the
Montgomery Chapter.
69.

Disputed. While Risens editor at Simon & Schuster commended the manuscript

chapter concerning Montgomery, see supra 68, none of the documents Plaintiff relies on
indicate that the manuscript chapter concerning Montgomery was the primary new material
and the primary appeal of the Book for publication and sales.
70.

Disputed that [a] major appeal for sensationalizing and selling the Book was the

claim that it was based upon confidential sources. The testimony cited by Plaintiff instead
confirms that Risen and his publisher included a Note on Sources in the Book because the
issue of confidential sources had become controversial and [Risen] wanted to defend the use of
them. Nichols Dep. Tr. 48:23-53:9. Nichols repeatedly rejected Plaintiffs counsels contention
that the Note on Sources was intended to help sell books. See, id., at 52:18-53:9
(testifying [w]hat would be the most compelling is the actual news, whether it is from
confidential or on the record sources. Thats what gets the attention.). Risen denied that the
Note on Sources was a selling point, for the Book, but rather that [i]t was a general statement
for the entire book about the use of confidential and anonymous sources. Risen Dep. Tr.
168:10-20; 170:1-13.
71.

Disputed. See supra 68.

72.

Disputed. Statement is argument, not fact, and not supported by any documentary

or other evidentiary support.

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73.

Disputed. See supra 62, 64.

74.

Undisputed that Nichols testified that it is an industry standard not to fact-check

book authors. See, e.g., Nichols Dep. Tr. 89:20-91:2. Plaintiffs contention that conforming to
that industry standard is [a]cting with reckless disregard for the truth is a statement of law, not
fact, and is disputed. Plaintiff has admitted and does not dispute that Risen relied on prior news
reports and had reporters Eric Lichtblau and Aram Roston review the Chapter for accuracy.
SDMF 8. Plaintiff has failed to identify any error of fact that fact-checking would have caught
before publication. Moreover, it was entirely reasonable for HMH to rely on their reputable
author, Risen, who has been awarded the Pulitzer Prize twice, among other awards of distinction.
Risen Decl. 4. See also Nichols Dep. Tr. 54:20-55:4 (We take our reputation very seriously
and we have to make a decision who to publish and who do we trust. And when Jim Risen who
is one of the best investigative reporters in the country, reports a story and has multiple sources
and makes a decision on what that story should be, we tend to trust him.). There was also a
legal review performed. Id.
75.

Disputed that Defendants fabricated accusations against the Plaintiff because

they believed they can say whatever they wish. The statement is unfounded and unsupported by
any evidence of record. The testimony of Mr. Nichols cited by Plaintiff that prior to
Montgomerys suit he has never been involved in publishing a book, including the previous book
by Risen State of War, that was subject to a libel action does not support Plaintiffs unfounded
statement. Nichols Dep. Tr. 22:21-25.
76.

Undisputed that Risen was aware from an Air Force spokesman that they ended

the contract with Montgomerys company because the software didnt work out, Risen Dep.
Tr. 297:21-298:14, notwithstanding [e]arly reports from the Air Force that the software was
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performing very well. Risen Decl. Ex. 25, ECF No. 203-25. Risen and Lichtblau reached out
to and obtained comment from an Air Force spokesperson, Todd Spitler. Id.; Risen Decl. 33.
Risen relied on the spokespersons statement that the Air Force awarded a contract to
Montgomerys company in 2009 but that the contractor did not perform in accordance with the
terms of the contract. Risen Decl. 33; Risen Decl. Ex. 26, ECF No. 203-26. See also SUMF
40.
77.

Disputed. Risen relied on numerous sources and court, official, and congressional

records for the Chapter. SUMF 24-43; supra 62, 64. Risen accurately described the
contents of these records and source information as a basis for the statements Risen wrote about
Montgomery. Id. Montgomerys position that his work may have produced information
unhelpful to decision-makers or inaccurate, and his denial that he engaged in fraud were
included in the Chapter. Id. 44. The deposition testimony cited by Plaintiff does not support
the fact asserted and instead pertains to Risens perception that the details reported in the Chapter
were less sensitive to the government because they were older news, Risen Dep. Tr. 102:7107:12; that Montgomerys role in providing dubious intelligence to the government was well
published and publicized, id. at 215:1-217:10; and that he included Montgomerys claims that
his intelligence was valuable in the Book, id. at 339:5-19; 340:16-342:10.
78.

Disputed because the hypothetical statement that Defendants knew that if

information from Montgomerys work was merely wrong or unhelpful to decision-makers, that
does not mean he perpetrated a hoax, committed fraud, or was a con man is argument and not
fact. The statement is also disputed because the testimony cited does not support the asserted
statement and instead concerns Risens review of prior publications concerning the facts
discussed in Chapter 2, 101:14-22; Risens review of court documents wherein eTreppid
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employees stated that Montgomery had them participate in falsifying tests for the military,
285:8-288:14; Risens reliance on Frances Townsend, a former White House counterterrorism
official on the National Security Council who dealt with Montgomerys intelligence for reporting
that the CIA was deceived by Montgomery, 314:1-328:24; Risens reporting from congressional
records concerning statements from John Brennans confirmation hearing for CIA Director to
confirm that Montgomerys software was fake, 335:2-337:25; Risens reporting that the Israeli
officials rejected Montgomerys offer to share the dubious technology, 338:6-339:19; Risens
reliance on sources who said that Montgomerys technology was not valuable and did not
provide valuable intelligence, 340:8-342:10; Risens efforts to seek comment from the U.S.
Department of Justice, 346:5-20; Risens reporting that the CIA confirmed to him that the
software did not perform as Montgomery and eTreppid promised, 383:3-385:13. See also supra
62, 64.
79.

Disputed. This is argument, not a statement of fact and not supported by any

document or other evidentiary support.

80.

Disputed. See supra 64.

81.

Undisputed that Risen had reason to believe, based on the article in Playboy

that the Plaintiff had a top secret security clearance, at one time. Defendants dispute that Risen
knew that Montgomery would have lost his security clearance if Montgomery released or
disclosed classified national security information or committed the biggest hoax in American
history, and further dispute that Plaintiff did not lose his security clearance. Although
counsel for Plaintiff made numerous, unsubstantiated statements at the January 5, 2016 sanctions
hearing that Montgomery has retained his security clearance, e.g., Hrg Tr. 30-31; 126-128,
Plaintiff has never put forward any evidence that he has such clearance and because his clearance
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was dependent on his employment, it is unlikely that he actually retains such privileges, even if
he had them at one time.
82.

Undisputed that Risen believes that the U.S. Government has never requested

nor received any refund, repayment or return of any funds paid to any company for any work
performed by Montgomery. Defendants dispute the argumentative statement not fact - that
this is logically because [Montgomerys company] did work and was not a fraud and the biggest
hoax in American history, because, as Risen testified, it was the point of the story that this
intelligence was a fake and the government didnt want to make this public because it was
embarrassing to a lot of people. Everybody wanted to forget about this. Risen Dep. Tr.
282:9-284:7. See supra 62, 64, 66, 73.
83.

Undisputed that Risen relied, in part, upon interviews with sources for both the

2011 New York Times article and the Book in which he took notes. See, e.g., Risen Dep. Tr. 149;
Risen Dep. Ex. 5, Notes, ECF No. 234-3. Disputed that Risen produced few notes from his
interviews, because Defendants have produced various notes relevant to Risens research for the
Book. See Risen Dep. Tr. 149:3-152:9 (describing collection of notes for production to
Plaintiff); Risen Decl. Exs. 20 (Drumheller), 21 (Youngblood), 22 (Townsend), 23 (Ravich), 24
(Dubee), 25 and 26 (Spitler).
84.

Undisputed that Risen testified that Montgomery told him that he gave the CIA

letters and numbers that he claimed to discover using his software technology, and that Risen
further testified that government officials then took [Montgomerys] information to the
President and us[ed] it to ground flights. Risen Dep. Tr. 305:16-307:9.
85.

Undisputed that the quote is an accurate quote from the article Hiding Details of

Dubious Deal, U.S. Invokes National Security, New York Times, Feb. 19, 2011, and Warren
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Trepp, on behalf of Montgomery and Trepps business, eTreppid, was making deals with the
government to license Montgomerys software, on the belief that the software would perform as
Montgomery promised.
86.

Undisputed that page 38 of the Chapter contains the quoted statement, but

Defendants dispute that the statement is in any way perverse.

87.

Disputed because the Chapter does not report that Warren Trepp, Montgomery, or

eTreppid received $30 million in government contracts licensing Montgomerys software;

Plaintiff provides no documentary or other evidence about the purported reality that Trepp
actually received the $30 million or the remaining argumentative statements in this paragraph.
88.

Undisputed that pages 38-39 of the Chapter summarize actions taken by Trepp on

behalf of eTreppid, the company he formed with Montgomery to market the software
technology, and undisputed that page 39 of the Chapter contains the quoted statement, but
Defendants dispute that the quoted statement is a summary of Trepps efforts, but rather
summarizes the facts that follow on page 39: that Montgomery had the backing of two wealthy
investors, had one of the nations most influential lobbyists scouring the federal budget for
earmarks on his behalf, and had the support of a key member of the CIAs oversight committee.
89.

Disputed insofar as this statement is conclusory and argument and not a statement

of fact. As to Plaintiffs assertion that Defendants put forth no supporting facts, see, e.g., SUMF
10-43.
90.

Disputed. Plaintiff provides no record evidence that the quoted statements from

Mr. Risens deposition testimony are false. Moreover, Risen included many passages of
Montgomerys denials in the Book. See Chapter 33-34, 37, 51, 53; Risen Dep. Tr. 77:8-78:22;

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79:13-81:13; 113:19-114:15; 206:16-208:13; 304:25-312:2; 337:7-338:19; 339:8-341:18; SUMF

7.
91.

Undisputed that page 33 of the Chapter contains the quoted statement, but

disputed that the Chapter did not report that neither the Plaintiff nor any of the companies he
was working under were ever sanctioned or that Risen was required as a matter of law to
include such a statement. Risen points out, at page 46 of the Chapter: Once the CIA officials
finally accepted the truth, however, and agreed with the French findings, George Tenet and
others at the CIA who had been Montgomerys advocates tried to forget all about him. They
never talked about the operation again. Within the CIA, it was as if Dennis Montgomery had
never existed, and that [t]he CIA never investigated the apparent hoax nor examined how it
had been handled inside the agency. Risen further states, at page 49 of the Chapter, that when
Trepp told the FBI that Montgomery had stolen the software federal investigators moved in to
investigate the alleged theft but largely ignor[ed] the evidence that [Montgomery] had
perpetrated a hoax. Also disputed that Defendants did not publish and withheld material facts
that Plaintiff conveyed to Defendant Risen because this argument presents a question of law not
fact and fails to identify any material fact with specificity or evidentiary support.
92.

Undisputed that the documents referenced contain the quoted statements. See

SMDF Ex. 12, ECF No. 234-12. Risen responds to Montgomery: I have tried to talk to Warren
Trepp. If you have any information about his role, I would like to talk to you about it. Well, I
would like to write more about him and everyone else in my book now. Id.
93.

Disputed. The Chapter does not report that Montgomery received $30 million,

or that Trepp was paid that amount through eTreppids government contracts.

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94.

Disputed. Undisputed that the quote is an accurate quote from the New York

Times Article and do not dispute that Edra Blixseth was selling Montgomerys software.
95.

Disputed because this is not a statement of fact, but a legal argument.

Defendants grounds for asserting the Plaintiff is a limited purpose public figure can be found at
pages 25-28 of their Motion for Summary Judgment, SUMF 10-23, and II.D of Defendants
Reply In Support of Their Motion for Summary Judgment and include many news reports in
other media that predated and postdated the New York Times Article but all predate the Book.
96.

Undisputed that the document referenced contains the quoted statements and

Risen relied on statements to the FBI of a prior partner, Warren Trepp, and former employees
who questioned whether Montgomerys software even existed and recounted how they were told
to rig tests to dupe government officials indisputably negates actual malice. While the FBI
search itself was found unconstitutional, see In the Matter of the Search of 12720 Buckthorn
Lane, Reno, Nevada, et al., Case No. 3:06-cv-00263-PMP-VPC, Order at 31 (Nov. 28, 2006), the
reasons for the courts holding were unrelated to the truthfulness of Trepp and the former
employees statements regarding whether Montgomerys software exists and whether the tests
were rigged. Moreover, the courts order found no probable cause because the documents and
software subject to the search warrant were not classified information. Id. (noting that the
Government conceded that nine Secret hard drives were not, in fact, classified and that the
material was not properly classified by an Original Classification Authority within the U.S. Air
Force).
97.

Undisputed that the document referenced contains the quoted statements. See

Defs. Mot. for Sanctions 3-4, ECF No. 166.

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98.

Undisputed that the document referenced contains the quoted statements. In

addition, Plaintiff never produced any information alluded to in this statement to Risen. Risen
Dep. 80:9-16.
99.

Undisputed that the document referenced contains the quoted statements. Risen

testified that the assertions provided by Montgomery were too vague to call any government
sources. Risen Dep. Tr. 80:2-81:12 ([Montgomery] made vague assertions and never
provided any foundation or basis in fact to follow them up.)
100.

Undisputed that the document referenced contains the quoted statements. See

supra 99.
101.

Undisputed that the document referenced contains the quoted statements. In

addition, Risen was highly critical of Tenet, Brennan, and other CIA and government officials in
the Book. See, e.g., Chapter at 32-33, 38-48, 52. See, also, supra 99.
102.

Defendants dispute that Plaintiffs denials were not reflected in the Chapter, see

Defs Reply in Support of MSJ II.A & C, and the unfounded assertion that Defendants engaged
in planned defamation. Risen interviewed Montgomery by phone and email for the Chapter
and included Montgomerys point of view and denials in the Chapter. SUMF 7, 44. See
supra 90.
103.

Defendants dispute that the documents referenced show that Risen threatened to

publish defamatory statements about Montgomery unless Montgomery broke the law by
providing emails with John Brennan and others that Montgomery understood to be classified
communications. Instead, the documents confirm that Risen repeatedly sought an interview
with Montgomery, on the record, to obtain Plaintiffs version of events. Once Risen interviewed

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Montgomery on the record, Plaintiffs denials and account were included in the Chapter. SUMF
7, 44. See supra 90.
104.

Disputed. See supra 65.

105.

Disputed. On January 14, 2015, Plaintiff, through counsel, demanded that HMH

identify how it fact-checked the Book. Nichols Dep. Tr. 97:17-99:10. See also SMDF Ex. 15,
ECF No. 234-15. Thereafter, on February 13, 2015, Plaintiff, through counsel, sought
corrections to the Book, which HMH refused. Id. at 124:15-125:4. See also SMDF Ex. 16, ECF
No. 234-16.
106.

Defendants dispute this statement because it is a legal argument and not a

statement of fact. Defendants further dispute this statement because undisputed factual evidence
of record confirms that Montgomery was subject to extensive media coverage years before
publication of the Chapter, SUMF 10-23, and that Montgomery sought media coverage by
giving an exclusive interview to Lisa Meyers of NBC News, id. 14, seeking to publicize his
whistleblower allegation to Fox News, id. 23, and to Risen, SMDF Exs. 9, 12-14.
107.

Defendants dispute that the quoted statement is an admi[ssion] by Risen.

Moreover, the quoted statement refers to a different Chapter in the Book, and this is thus
misleading and taken out of context, as Risen explained at his deposition. Risen Dep. Tr. 365:1366:11.
108.

Disputed. Risen discussed more than three sources at his deposition, including

William D. Murray, CIA Paris Station Chief, Risen Dep. Tr. 288:2-297:1; 330:23-334:4; George
Little and Jennifer Youngblood, CIA Office of Public Affairs officials, id. at 248:16-250:12;
380:2-384:13; Frances Townsend, a former White House counterterrorism official on the
National Security Council, id. at 282:23-284:7; 313:12-326:25; Samantha Ravich, former advisor
16

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to Vice President Dick Cheney, id. at 93:19-21; 282:23-284:7; 328:2-330:22; Michael Flynn,
Montgomerys former lawyer, id. at 58:7-12; 254:5-10; 267:19-24; and Tim Blixseth, the exhusband of Montgomerys boss at Blxware, id. at 254:11-14. Risen identified additional sources,
but Plaintiff declined to depose any of them or ask Risen questions regarding them.
109.

Disputed. See supra 62.

Dated: January 27, 2016

Respectfully submitted,
DAVIS WRIGHT TREMAINE LLP
By: /s/ Laura R. Handman
Laura R. Handman (Bar No. 444386)
Lisa B. Zycherman (Bar No. 495277)
1919 Pennsylvania Avenue, NW
Suite 800
Washington, DC 20006
Telephone: (202) 973-4200
Facsimile: (202) 973-4499
laurahandman@dwt.com
lisazycherman@dwt.com
Counsel for Defendants

17

Case 1:16-cv-00126-RC Document 251 Filed 01/27/16 Page 19 of 19

CERTIFICATE OF SERVICE
I certify that on January 27, 2016, I filed this document with the Clerk of Court using
CM/ECF, which will serve this document on all counsel of record.

/s/ Lisa B. Zycherman

Lisa B. Zycherman